To "approve" of piracy is to lawbreak: world's top torrent site is found guilty of speechcrime

The world's top torrent site The Pirate Bay has long struggled with legal issues [1][2][3]. It thought it left those problems behind when it switched from physically hosting torrents to hosting only magnet links to downloadable torrents. But an ardently pro-big media British justice has turned up the heat on the site, accusing it of thoughtcrime and speechcrime.

I. Judge Rules The Pirate Bay is Guilty of "Thoughtcrime"

The Hon. Mr. Justice Richard David Arnold, 51, a member of the High Court of Justice Chancery Division, and long standing QC ("Queen's Counsel") ruled that the site's decision to "approve" of piracy was in and of itself illegal.

In a lawsuit brought against very British internet service providers by the nation's top music labels, Justice Arnold rules:

In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin in this respect. If anything, it is a stronger case.

In the present case, the matters I have considered in relation to authorisation lead to the conclusion that the operators of TPB induce, incite or persuade its users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe. It is also relevant in this regard that the operators profit from their activities. Thus they are jointly liable for the infringements committed by users.

For the reasons set out above, I conclude that both users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK.

In other words, employees of The Pirate Bay wrote something seemingly in favor of piracy -- or critical of "big media" -- which coupled with the facts that they post links directing users to files -- which may or may not be illegally shared -- they're automatically guilty of copyright infringement.

Essentially the ruling finds the website guilty of thoughtcrime (by the fact that the administrators do "approve" of piracy, a belief) and speechcrime (allowing/encouraging users to post written links to infringing content -- induction and incitement).

Justice Arnold, appointed in 2008, has been a key friend of big media, moving aggressively in 2011 to force British ISPs to block Newzbin, a forums site which movie and music studios claimed was promoting piracy. Like The Pirate Bay, Newzbin didn't contain any actual content, but merely indexed (allowed links) to a variety of content -- some of which indeed may have been infringed.

Justice Richard Arnold is a key ally of big media in British court.
[Image Source: 11 South Square]

While he has generally sided with big media in piracy cases, Justice Arnold did last year earn the appreciation of at least one major internet player when he ruled in eBay, Inc. (EBAY) of civil liability in a counterfeiting case brought by French cosmetics manufacturer L'Oreal (ETR:OR).

II. British Gov't Vows War on Piracy, But Allows Big Media to Pirate

The Pirate Bay civil ruling clears the way for the music labels in the suit to force Britain's top internet service providers to block The Pirate Bay. For now, this will likely not effect the site's accessibility in the nation much, given that the site's compaction thanks to ditching torrents and switching to magnet links has allowed for easy mirroring by volunteers worldwide.

Ultimately, though the ruling could serve as a prelude to steep fines or even criminal penalties against citizens who host the site, and in doing so commit the same "thoughtcrime" and "speechcrime" the site was found guilty of.

Britain's top music labels are allowed to pirate independent artists' works for profit, but The Pirate Bay is poised to be banned for simply supporting filesharing. [Image Source: ByteLove]

Aside from killing public piracy while preserving loopholes for their own seizure of copyrighted content, big media's other major objective is to ban backup copies. That would allow them to execute their ultimate goal of expanding users "choices", by forcing them to repurchase content they already own. Top media corporations contend that making backups of CDs or DVDs you legally own is akin to "stealing" a copy via piracy or petty theft.

You still have it wrong. It's not the speech that makes you guilty, it's the intent coupled with the action. The speech is merely possible evidence of intent. As in any other crime, intent can be inferred based on the circumstances.

Here is an example of a speech crime: a speech crime is being arrested for yelling fire in a crowded movie theater. It doesn't matter if you were joking or not, the words themselves are the crime.

In this case, TPB could "sanction, approve and countenance" all they want. It was the combination of the "enabling and assisting" infringement with their website with the sanctioning and approving that made them guilty. The approval is indicated by evidence (speech, purpose of the website, general attitude toward copyright infringement, etc.). If you are reading the judge's decision that the guilt came entirely from the approving of infringement then you are reading his decision incorrectly. He is using the approval to infer the intent prong. Two elements 1) action (operating the website) 2) intent (sanction or approve the infringement). They can't be guilty of the crime without both elements.

Your google example is poor because google's website has a myriad of alternative noninfringing uses. In contrast TPB's website exists primarily to host copyrighted works and promote infringement. In the US, the best legal example is the Sony tape recorder case that went to the supreme court many years ago. The reason Sony was not guilty of copyright infringement was because their device was capable of substantial noninfringing uses.

quote: You still have it wrong. It's not the speech that makes you guilty, it's the intent coupled with the action. The speech is merely possible evidence of intent. As in any other crime, intent can be inferred based on the circumstances.

Here is an example of a speech crime: a speech crime is being arrested for yelling fire in a crowded movie theater. It doesn't matter if you were joking or not, the words themselves are the crime.

In this case, TPB could "sanction, approve and countenance" all they want. It was the combination of the "enabling and assisting" infringement with their website with the sanctioning and approving that made them guilty. The approval is indicated by evidence (speech, purpose of the website, general attitude toward copyright infringement, etc.). If you are reading the judge's decision that the guilt came entirely from the approving of infringement then you are reading his decision incorrectly. He is using the approval to infer the intent prong. Two elements 1) action (operating the website) 2) intent (sanction or approve the infringement). They can't be guilty of the crime without both elements.

Your google example is poor because google's website has a myriad of alternative noninfringing uses. In contrast TPB's website exists primarily to host copyrighted works and promote infringement. In the US, the best legal example is the Sony tape recorder case that went to the supreme court many years ago. The reason Sony was not guilty of copyright infringement was because their device was capable of substantial noninfringing uses.

Their action was allowing a forum for the written word -- a form of speech. People were able to post written links, which direct people to torrent download servers and written text descriptions.

Again the ONLY action TBP took was to provide a searchable forum that allowed writing (speech), including actionable web links. Was that speech in support of piracy? Absolutely. But again this is speech.

quote: He is using the approval to infer the intent prong. Two elements 1) action (operating the website) 2) intent (sanction or approve the infringement). They can't be guilty of the crime without both elements.

He was using "approval" as a means of proving guilt, as even you seemingly admit. To "approve" is to hold a thought. Hence this aspect is thoughtcrime -- guilt for your thoughts and personal beliefs.

But as for your point of operating a website, operating a website is not inherently criminal. Hence -- again -- their only "action" that violates civil code is allow users the freedom and tools to express themselves via writing, including posting web links and posting descriptions of copyrighted works. Thus they are permitting unwanted forms of speech, hence this is an instance where the ruling is based on speechcrime.

Under the CURRENT TBP policies (of magnet links only), if TBP is taking any other action besides writing, and hosting a platform where other users can post writing (including actionable links), please let me know . (Aside from the physical hosting of torrents, which they are phasing out.) If not, the ruling is fundamentally based on speechcrime and thoughtcrime, as I state above, no matter how you dussy it up.

Again you seemingly admit that TBP's crimes revolve around writing, but then you seek to creatively redefine this prosecution over writing away from the area of speechcrime.

Again the only way I can see that you would define this otherwise is if you argue that post URLs is not a form of speech. As a person with experience covering internet technology, I would argue that it is, whether or not the specific legal precedent in some certain region sees it as such.

quote: Your google example is poor because google's website has a myriad of alternative noninfringing uses. In contrast TPB's website exists primarily to host copyrighted works and promote infringement.

That's patently not true. The Pirate Bay can be and is used to carry written descriptions and links to a great deal of legal, non-infringed work as well.

Like Google, who scrapes user-links via crawling and then compiles that speech into new actionable written descriptions, the TBP allows users to post such descriptions first-hand.

Whether those descriptions on either platform lead to infringed content is the purview of the users, not the site.

quote: Here is an example of a speech crime: a speech crime is being arrested for yelling fire in a crowded movie theater. It doesn't matter if you were joking or not, the words themselves are the crime.

One further point on this. Big media interests have stated time and time again that simply posting a link (or hosting one) to infringed content is a (speech)crime.

This was one of their primary motivations in pushing SOPA/PIPA, ACTA, and its foreign equivalents.

Hence the practice of posting a link and description to infringed content narrowly meets your criteria of speechcrime.

And TBP's platform in allowing the mass posting of such links and descriptions, amounts to the commission of numerous speechcrimes -- AS DEFINED by the lawyers for large record labels and film studios.

I don't seem to admit that the approval lead to guilt, I explicitly admit it. Since you didn't get it before: they needed the approval for guilt. Like I said though, you can't have guilt without the added prong of the action which was aiding and abetting copyright infringement. Approval alone would not have been enough for guilt. If approval alone had been enough then you could righfully say this was a thought crime or speech crime. But it wasn't, so you can't.

What I object to is your mischaracterization of this as a speech crime or thought crime. By your definition murder is a thought crime and solicitation for murder is a speech crime because elements of the crime are what someone objectively thought or actually said. You are using the wrong definitions and doing so makes your story very inaccurate because you make it seem like TPB got nailed for the approval with nothing more, which is blatantly wrong.

Please show me evidence of google aiding and abetting copyright infringement in the same way and I will be happy to acknowledge your example.

quote: What I object to is your mischaracterization of this as a speech crime or thought crime. By your definition murder is a thought crime and solicitation for murder is a speech crime because elements of the crime are what someone objectively thought or actually said. You are using the wrong definitions and doing so makes your story very inaccurate because you make it seem like TPB got nailed for the approval with nothing more, which is blatantly wrong.

Solicitation of murder under certain VERY specific circumstances, could be considered a form of speechcrime, assuming no money is involved. For example, if I said someone should die and I gave their address, then you could argue I committed a speechcrime (Much like yelling "fire" in the theater... I provided information that led to criminality or chaos.) In this case note, no direct payment or quid pro quo is involved.

If money or quid quo pro is used to pay someone to do a crime, which you solicit via speech, then it becomes a direct financial action.

By contrast TBP did not pay users to infringe, nor did it directly receive payment from them. Thus in essence, in a broad definition, it is a speechcrime.

quote: By your definition murder is a thought crime and solicitation for murder is a speech crime because elements of the crime are what someone objectively thought or actually said. You are using the wrong definitions and doing so makes your story very inaccurate because you make it seem like TPB got nailed for the approval with nothing more, which is blatantly wrong.

Again, I did not say that. I said that it "got nailed" to borrow your wording, for:a) Approval (thoughtcrime)b) Giving users a platform for speech (providing actionable links and descriptions) (speechcrime)

Again, TBP did not directly host pirated works or pirate them itself. Thus it's merely offering users descriptions of how to commit crime and hence is committing a form of civil speechcrime, with the court lumping in thoughtcrime in proving intent.

I disagree with using someone's opinions to prove intent, as again, I feel this is thoughtcrime. A person should be judged solely on their actions. But that's my personal opinion/analysis.

quote: Please show me evidence of google aiding and abetting copyright infringement in the same way and I will be happy to acknowledge your example.